PN1

THE DEPUTY PRESIDENT: Good afternoon. Mr Cooney, you're appearing for the applicant?

PN2

MR J COONEY: Yes, Deputy President. With me is Mr Dissio Markos and Mr Noel Dowling of the Transport Workers Union.

PN3

THE DEPUTY PRESIDENT: Ms Gaspar, you're seeking permission to appear for the employer?

PN4

MS N GASPAR: Deputy President, I am, and do so in reliance on the factors in section 596 of the Act.

PN5

THE DEPUTY PRESIDENT: I've read your submissions.

PN6

MS GASPAR: Thank you, Deputy President.

PN7

THE DEPUTY PRESIDENT: Is there any objection?

PN8

MR COONEY: No, Deputy President.

PN9

THE DEPUTY PRESIDENT: I'm satisfied, having regard to the complexity of the matter, that the matter would be dealt with more efficiently if I were to grant the respondent ZIP Airport Services Pty Ltd permission to be represented by a lawyer and I do so. I gather the only issue is whether there are exceptional circumstances justifying a longer period of notice to be given in respect of certain matters. Have the parties had an opportunity to have a discussion about the course of conduct today?

PN10

MS GASPAR: We have, Deputy President. Even though the employer is technically respondent to this application, the only basis upon which we make submissions is in respect of exceptional circumstances. On that basis - I've conferred with Mr Cooney - I think the most efficient way for this case to be dealt with is if the company presents its case first and then the union have an opportunity to respond, Deputy President.

PN11

THE DEPUTY PRESIDENT: Yes, very well.

PN12

MS GASPAR: Thank you. On a matter of housekeeping, we have received by email a copy of a witness statement from David James, who the union seeks to rely on. He is present in the courtroom at the moment. We just ask that he be excused while the company witness provide his evidence, Deputy President.

PN13

THE DEPUTY PRESIDENT: Is there any objection to that course, Mr Cooney?

PN14

MR COONEY: No, Deputy President. Just on one aspect of Mr James's statement, at item 4 it states that he was employed as a refueller since September 2005. That should be since 2011, but we can clear that up when he gives his evidence. Thank you.

PN15

THE DEPUTY PRESIDENT: Very well. All right. Mr James, would you mind going for a walk for a while. Take your mobile phone with you. I'm sure we'll be in touch. Thanks.

PN16

MS GASPAR: Thank you, Deputy President. I did indicate that the only basis of the company's objections to the union's proposed orders is on the length of time within which it's required to notify the company of the various forms of protected industrial action. Can I clarify for the benefit of the Commission a point I have just clarified with Mr Cooney before this hearing commenced and it is that the company does not take any objection or seek a further period of time with respect to the work ban that is described in - - -

PN17

THE DEPUTY PRESIDENT: This is the ladders ban.

PN18

MS GASPAR: Yes, that's right, Deputy President.

PN19

THE DEPUTY PRESIDENT: I noted that.

PN20

MS GASPAR: So the company's position, just to be clear in relation to that, is that although there are exceptional circumstances in respect of that particular work ban, those exceptional circumstances would not justify a period of longer than three days. On that basis, the company's submissions are in respect of the overtime bans, the work ban with respect to closing fuel panels in aircraft, the work ban with respect to refuellers refusing to switch aircraft and the periodic stoppages and the indefinite stoppages, Deputy President.

PN21

THE DEPUTY PRESIDENT: Yes.

PN22

MS GASPAR: Thank you very much. Deputy President, the company did file in accordance with the directions of the Commission an outline of submission upon which we seek to rely. I'm not sure whether you would like to formally tender that. You have received a copy.

PN23

THE DEPUTY PRESIDENT: Not the outline. I have read it.

PN24

MS GASPAR: Thank you. The company has also submitted two witness statements from its witness Simon Slattery. One was filed on 11 June and the later supplementary statement on Friday, 14 June. Can I just check that the Commission has a copy of those two statements.

PN25

THE DEPUTY PRESIDENT: I do.

PN26

MS GASPAR: Thank you. I will then call Simon Slattery to give some - - -

PN27

THE DEPUTY PRESIDENT: Yes.

PN28

THE ASSOCIATE: Could you state your full name and address.

PN29

MR SLATTERY: Simon Matthew Slattery, Level 26, Waterfront Place, 1 Eagle Street, Brisbane, Queensland.

<SIMON MATTHEW SLATTERY, AFFIRMED [2.39 PM]

EXAMINATION-IN-CHIEF BY MS GASPAR [2.40 PM]

PN30

MS GASPAR: Mr Slattery, can I just ask you to repeat your name and business address, please, for the purposes of the transcript?‑‑‑Simon Matthew Slattery. Business address, Level 6, Waterfront Place, 1 Eagle Street, Brisbane, Queensland.

PN31

Mr Slattery, have you prepared two witness statements for the purpose of your evidence in this proceeding today?‑‑‑I have.

PN32

Do you have clean copies there with you?‑‑‑I do.

PN33

Can I take you to your first statement, Mr Slattery. That's the one you dated 11 June. If you can identify that correctly as a statement of 32 paragraphs with one exhibit?‑‑‑I can.

*** SIMON MATTHEW SLATTERY XN MS GASPAR

PN34

Do you have any amendments that you would like to make to that statement, Mr Slattery?‑‑‑I did just have one single amendment.

PN35

That is to paragraph 20 of that statement?‑‑‑Yes, that's correct. So paragraph 20(a), part 2, I would just like to have that removed, "local maintenance providers".

PN36

So with the deletion of the words "local maintenance providers" from paragraph 20(a) of your witness statement, is that statement now true and correct in every particular?‑‑‑It is.

PN37

Could I tender that statement, Deputy President.

PN38

THE DEPUTY PRESIDENT: Yes, thank you. Any objection, Mr Cooney?

PN39

MR COONEY: No, Deputy President.

PN40

THE DEPUTY PRESIDENT: Thank you. I will mark the witness statement of Mr Simon Slattery, comprising 32 paragraphs and dated 11 June 2019 - noting the amendment to paragraph 20 - together with the one annexure, as exhibit 1.

EXHIBIT #1 WITNESS STATEMENT OF SIMON SLATTERY DATED 11/06/2019 PLUS ANNEXURE

PN41

MS GASPAR: Mr Slattery, you have also filed a supplementary witness statement and you've got a clean copy of that in front of you?‑‑‑I have and I do.

PN42

Can you identify that as an eight‑paragraph statement dated 14 June 2019?‑‑‑Yes, I can.

PN43

Is that statement true and correct in every particular?‑‑‑It is true and correct.

PN44

I will also tender that, Deputy President.

PN45

THE DEPUTY PRESIDENT: Yes, thank you. Any objection to the tender?

PN46

MR COONEY: No, Deputy President.

*** SIMON MATTHEW SLATTERY XN MS GASPAR

PN47

THE DEPUTY PRESIDENT: Thank you. I will mark the supplementary witness statement of Mr Simon Slattery, comprising eight paragraphs, dated 14 June 2019, as exhibit 2.

EXHIBIT #2 SUPPLEMENTARY WITNESS STATEMENT OF SIMON SLATTERY DATED 14/06/2019

PN48

MS GASPAR: Deputy President, I seek the leave of the Commission to ask just a few further confined questions which relate to the evidence that Mr James will be giving later in this proceeding. This is a statement which just came to the attention of the respondent - - -

PN49

THE DEPUTY PRESIDENT: Yes. I'm sure there is no objection to that.

PN50

MR COONEY: No, Deputy President.

PN51

THE DEPUTY PRESIDENT: Yes, Ms Gaspar.

PN52

MS GASPAR: Thank you, Deputy President.

PN53

Can I ask, Mr Slattery, before I start on that and with the leave of the Commission, why you deleted paragraph 20(a)(2) from your witness statement?‑‑‑I've made some initial inquiries and the Melbourne based contractors won't be available to participate in any contingency like that.

PN54

Thank you, Mr Slattery. Now, have you read a copy of David James's witness statement that was provided this morning?‑‑‑I have.

PN55

Do you have a copy there which is clean in front of you?‑‑‑I do, yes.

PN56

I just want to ask you a few questions about that. Let me track down my copy. Apologies. Can I take you to paragraph 7 of Mr James's statement. In that paragraph there is reference to the practice in the past of Qantas Airways Limited engineers checking refuelling panels prior to closing the panel door. Are you able to comment on when that practice occurred, to the best of your knowledge?‑‑‑I understand that practice changed between 18 to 24 months ago.

*** SIMON MATTHEW SLATTERY XN MS GASPAR

PN57

Do you know why that is so, Mr Slattery?‑‑‑It was essentially an alignment with industry practice and it was an agreement reached between Qantas and Viva, and, as I understand, the other fuel providers.

PN58

Do you know whether this is something that in this case Qantas - whether this particular task - it forms part of Qantas's standard operating procedures?‑‑‑I don't believe that it does. The fact that this task was still done in Melbourne was a bit of an exception, so not consistent with Qantas's practices at other ports.

PN59

I will then ask you about the next paragraph of Mr James's statement, which I think is incorrectly numbered 9 but it is the next preceding paragraph there. There is reference to engineers previously performing all sign‑off on approval in relation to the switching of aircraft. Again can I ask you to comment upon when that, to your knowledge, ceased to be a practice that was performed by the airlines?‑‑‑The main shift in that respect was quite a long time ago; probably about 20 years ago when the main domestic carriers, Qantas and Virgin, shifted to refueller switching. Some international airlines continue to do their switching and there has been others that have transitioned over that period.

PN60

In paragraph 10 there is a description about some of - Mr James's evidence, it seems, will be that in respect of some aircraft this is a task which is still performed by the airlines. Is that your understanding?‑‑‑Some airlines do still choose to switch their aircraft. They tend to be the larger aircraft and they tend to be on international routes, as per that example there. There are certainly three large aircraft, so a number of international airlines do and it tends to be on the long haul flights. I would estimate that it's probably about 10 to 15 per cent of the actual refuelling activity we do where the airlines continue to switch their own aircraft.

PN61

Just so I understood your evidence then, that was in relation to the larger international long haul planes, which is the three types of aircraft that are referred to in Mr James's evidence?‑‑‑Correct.

PN62

Okay. Thank you. Can I ask you to comment then on paragraph 10 of Mr James's statement. He says that a Melbourne ASIC is not required and that visitor passes can be issued. Are you able to comment on that from your perspective, Mr Slattery?‑‑‑Yes. So visitor passes as I understand it, and certainly as we use them, are used for accompanied visitors. It wouldn't be appropriate for an airport worker who is working unaccompanied to be working on a visitor's pass.

PN63

To your knowledge is an ASIC card still required in those circumstances?‑‑‑To my knowledge, an ASIC card is required.

*** SIMON MATTHEW SLATTERY XN MS GASPAR

PN64

Paragraph 11 of Mr James's statement talks about, in his experience, the availability of airside driver authorities not being required for temporary airport staff. His evidence will be, it seems, that some staff can be driven under escort by a Melbourne Airport escort vehicle. Can you comment, please, for the Deputy President on your views on the effectiveness of that to supplement labour?‑‑‑So my view is that that isn't relevant and wouldn't be effective in the protected action scenarios that we are talking about. We require our workers to effectively work alone and move from aircraft to aircraft, so it would require for each one of those workers to have an escort provided by Melbourne Airport. I don't believe that Melbourne Airport would have access to the people or the vehicles to support that kind of arrangement.

PN65

Why do you say that's so, just to be clear?‑‑‑The escorts are normally used for unusual circumstances, one escort per vehicle being escorted, and the types of scenarios we're talking about where we might be talking about up to 15 vehicles, that would essentially mean 15 escorts would be required.

PN66

Paragraph 12 of Mr James's statement talks about other Viva Energy refuellers who are based elsewhere other than Melbourne Airport having an ASIC. Can you comment on the ability of other aircraft refuellers around the country to utilise ASICs at Melbourne Airport?‑‑‑To work at Melbourne Airport you either need a Melbourne issued ASIC or you need an Aus ASIC, which is a national ASIC. Aus ASICs are only issued if there is a reason to have one, so the majority of our refuellers working at other locations would have location specific ASICs.

PN67

Thank you, Deputy President. I don't have any questions further in‑chief.

PN68

THE DEPUTY PRESIDENT: Thank you, Ms Gaspar. Cross‑examination, Mr Cooney?

PN69

MR COONEY: Yes, Deputy President.

CROSS-EXAMINATION BY MR COONEY [2.50 PM]

PN70

MR COONEY: Mr Slattery, if I could take you to exhibit 1, your statement. At clause 12 of your statement you refer there to 65 employees are employed at Melbourne under the expired agreement. How many employees can actually sign off on work?‑‑‑Sorry, I don't - sign off in what respect?

PN71

So they do the refuelling and then they can sign off on the job or do all the employees have a capacity to do that?‑‑‑The majority of those employees are qualified refuellers.

*** SIMON MATTHEW SLATTERY XXN MR COONEY

PN72

But not all of them are?‑‑‑No, I believe they all are.

PN73

Okay. Thank you.

PN74

THE DEPUTY PRESIDENT: Sorry, just so I understand the evidence you have just given, you initially said the majority of the employees are and then you said all of them are?‑‑‑If the question is are the employees qualified and signed off in refuelling roles, all ZIP Airport Services employees are.

PN75

All 65 employed at Melbourne is your evidence. Is that right?‑‑‑Yes, correct.

PN76

MR COONEY: Could I take you to clause 20 of your statement. At (b) there you talk about key qualifications and at item (3) you refer to heavy vehicle licences?‑‑‑Yes.

PN77

If you're operating a refueller, you don't require a heavy vehicle licence, do you, for that?‑‑‑If you're driving a tanker - a refuelling tanker - you do require a heavy vehicle licence.

PN78

Yes?‑‑‑If you are driving a refuelling vehicle, you do not. Our standard approach is to have people licensed in both of those locations.

PN79

So a refueller would require a medium rigid licence?‑‑‑Correct.

PN80

At clause 22 of your statement - 22(e) - you're talking about the actions you need to take to respond to protected action. You talk about arranging local Melbourne Airport security access. What is the time frame for arranging that? Are you aware?‑‑‑It depends on the issuing authority of the original ASIC, but I understand it's two to three days.

PN81

That's all, Deputy President.

PN82

THE DEPUTY PRESIDENT: Yes. Any re‑examination, Ms Gaspar?

PN83

MS GASPAR: Nothing arising out of that, Deputy President.

*** SIMON MATTHEW SLATTERY XXN MR COONEY

PN84

THE DEPUTY PRESIDENT: Mr Slattery, thank you for your evidence. You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [2.55 PM]

PN85

THE DEPUTY PRESIDENT: Shall we have Mr James?

PN86

MR COONEY: Yes, thanks, Deputy President.

PN87

THE ASSOCIATE: Could you please state your full name and address.

PN88

MR JAMES: David Evan James, (address supplied).

<DAVID EVAN JAMES, AFFIRMED [2.55 PM]

EXAMINATION-IN-CHIEF BY MR COONEY [2.56 PM]

PN89

MR COONEY: Mr James, if you could state your name and address for the record?‑‑‑David Evan James, (address supplied).

PN90

You have with you an unmarked statement in this matter today?‑‑‑I do.

PN91

I tender that.

PN92

THE DEPUTY PRESIDENT: Did you have a correction first?

PN93

MR COONEY: Sorry, if I could take you to clause 4 of your statement. You say there:

PN94

I've been employed by VIP Airport Services, Viva Energy, as a refueller since September 2005.

PN95

Is that correct?‑‑‑No, it's not. It's 2011.

PN96

2011. Thank you. Sorry, Deputy President.

PN97

THE DEPUTY PRESIDENT: That's all right.

*** DAVID EVAN JAMES XN MR COONEY

PN98

MR COONEY: I tender that.

PN99

THE DEPUTY PRESIDENT: Any objection?

PN100

MS GASPAR: No, Deputy President.

PN101

THE DEPUTY PRESIDENT: I will mark the witness statement of David James, comprising 13 paragraphs, although 12 in actual number, dated 14 June 2019 - noting the amendment to paragraph 4 - as exhibit 3.

PN102

MR COONEY: Thank you, Deputy President.

EXHIBIT #3 WITNESS STATEMENT OF DAIVD JAMES DATED 14/06/2019

PN103

If I could take you to clause 10 in your statement.

PN104

THE DEPUTY PRESIDENT: I withdraw that, it actually is 13 in number. Two of them are marked as 10 and - - -

PN105

MR COONEY: Yes.

PN106

THE DEPUTY PRESIDENT: - - - there is no 8.

PN107

MR COONEY: I realised that all too late, Deputy President.

PN108

If I could take you to the first clause 10 of your statement, you say there that engineers with some aircraft operate the switching panel. Which airlines?‑‑‑So Emirates Airlines do all their own switching on all their aircraft, so Boeing 777 and Airbus A380 aircraft. Viva don't actually - any of the refuellers don't operate the switching on those aircraft. Etihad Engineering, who act on behalf of Air New Zealand, they perform all the switching on those aircraft so they open the fuel panels, perform all the switching and close the panels. There are Cathay Pacific, they operate the fuelling panels on their aircraft. Cathay Pacific also engineer on behalf of other airlines; I believe China Eastern. There is also Amsar Engineering at Melbourne Airport that conduct engineering for specific airlines. Amsar operate the switching on all their aircraft, the majority of which are international aircraft.

*** DAVID EVAN JAMES XN MR COONEY

PN109

Thank you. If I could take you to the second clause 10 in your statement and you talk there about the issuing of aviation security identification cards. You say there:

PN110

In my experience any visitor passes are issued by security on the spot. Therefore, a Melbourne ASIC is not required.

PN111

What is your experience in that regard?‑‑‑So with regard to ASICs, there are two types - well, practically there are three types of ASICs. Number 1 is there is a Civil Aviation Safety Authority ASIC which is issued by CASA. So in the case of myself, I'm a commercial pilot. I get my ASIC issued by CASA. For those that are not pilots they get issued their ASIC by Melbourne Airport, and there's two types. There can be a site specific one, so in our case, Melbourne ASIC, and they can also issue an Australian wide ASIC. So anyone requiring to operate consistently airside at Melbourne Airport or any Australian airport is required to have an ASIC, but for visitors and contractors and so forth they can operate under a visitor pass.

PN112

And who would issue those visitors passes?‑‑‑Melbourne Airport or security acting on behalf of Melbourne Airport.

PN113

Deputy President, I'd like to ask the witness in regard to exhibit 1. I ask that he be handed a copy of Mr Slattery's statement.

PN114

THE DEPUTY PRESIDENT: Do you have a copy? Do you have a copy for him?

PN115

MR COONEY: Sorry.

PN116

THE DEPUTY PRESIDENT: Thank you, Ms Gaspar.

PN117

MR COONEY: Mr James, what's your position with the employer? What role do you ‑ ‑ ‑?‑‑‑So my position, I'm employed - my actual specific title is a senior aerodrome operator, so I'm effectively a shift supervisor responsible for at any one time for between 12 and 14 refuellers on shift.

PN118

If I could take you to clause 12 of exhibit 1?‑‑‑Yes.

PN119

There in the second sentence the witness says:

*** DAVID EVAN JAMES XN MR COONEY

PN120

Approximately 65 of these employees are employed at Melbourne Airport under the expired agreement.

PN121

Do you have any knowledge to the contrary that it's 65?‑‑‑Yes, 65 is probably not accurate. So based on the switching and sign off list, which is basically the refuellers' competency to perform the aircraft re-fuelling there's currently 54 aircraft refuellers with switch competency sign offs.

PN122

Thank you. So 54 is it?‑‑‑Correct. I believe two of those are not covered by this agreement. Also they're under a separate Viva agreement as they were previously employed by Shell and not ZIP.

PN123

Thank you. Nothing further, Deputy President.

PN124

THE DEPUTY PRESIDENT: Yes, thank you. Cross-examination, Ms Gaspar?

CROSS-EXAMINATION BY MS GASPAR [3.03 PM]

PN125

MS GASPAR: Thank you, Deputy President. Mr James, I'm just going to ask you some questions about the evidence that you've given here today?‑‑‑Sure. Yes, no problem.

PN126

Can I take you back to your witness statement, Mr James?‑‑‑Yes, of course.

PN127

I asked Mr Slattery when he gave his evidence, you were out of the room, about some of these things, and I just want to get your response to what his evidence was?‑‑‑Sure. Yes, no problems.

PN128

So paragraph 7 of your statement you describe that closing the refuelling panel was a job that was previously done by Qantas Engineers. Mr Slattery said that that ceased to be Qantas's practice about 18 or 24 months ago. Do you accept that's so, when that practice ceased?‑‑‑The exact timeframe, yes, as I understand it, it was offered as an additional service to Qantas for the refuellers to close the panels, yes.

PN129

And is your understanding that was quite peculiar to Melbourne Airport?‑‑‑Sorry?

*** DAVID EVAN JAMES XXN MS GASPAR

PN130

Is your understanding that that arrangements was quite unusual or peculiar just to Melbourne Airport, that that's not a common practice for the domestic airlines to do that themselves at other Australian airports?‑‑‑Look, I really don't know what the practices are with other ports. Yes, I mean, I can only speak for, you know, the difference between Qantas and Virgin. Virgin, you know, they put the stairs away for us, that sort of thing, but Qantas, as far as I knew, they request it as an additional service.

PN131

Yes. Just to be clear, I'm talking about the closing the panel door?‑‑‑Okay, closing the ‑ ‑ ‑

PN132

And moving the ‑ ‑ ‑?‑‑‑‑ ‑ ‑fuel panel, yes. Yes.

PN133

You accept, don't you, Mr James, that closing the panel door, the refuelling panel door forms part of refuellers' standard operating procedures with ZIP Airline Services, don't you?‑‑‑Given that it was offered as an additional service, yes.

PN134

Yes?‑‑‑But in the past that had historically been an engineering requirement.

PN135

Do you know whether it forms part of Qantas engineers' standard operating procedures now to close the fuel panel door?‑‑‑On wide-bodied aircraft it does.

PN136

I'm talking about the domestic aircraft here?‑‑‑Yes, so Qantas operate wide-body and narrow-body aircraft on domestic schedules, okay. So on all wide-bodied aircraft it's the engineers' requirement to shut that fuel panel. Okay, so wide-bodied aircraft is A330, A380s and 787s.

PN137

Yes. That's right. So but none of the aircraft that you describe in your first paragraph 10 of your statement, being the 747, the 777 or the A380, those aren't aircraft used on domestic routes, are they, Mr James, to your knowledge?‑‑‑Not any more, no.

PN138

Okay. Thank you. I just want to ask you then about paragraph 9 of your statement. You talk about the practice of switching of aircraft previously being done by Qantas - sorry, engineers of all the airlines?‑‑‑Mm-hm.

PN139

And you say that in your experience that was done in the past, I think you say. "In my experience was previously performed". You don't tell us when. Do you know when that was previously done?‑‑‑Well, in some cases it's still the case, okay. So it all depends whether we've got sign off approval and the given operator is adequately trained on that aircraft. So if the operator does not have sign off approval on that aircraft then the engineers must still switch that aircraft.

*** DAVID EVAN JAMES XXN MS GASPAR

PN140

Mr Slattery's evidence in this Commission that that practice ceased about 20 years for domestic aircraft, putting aside the specific aircraft types that you've mentioned in paragraph 10 of your statement, does that sound right to you, Mr James?‑‑‑On domestic aircraft or ‑ ‑ ‑

PN141

Yes. Yes?‑‑‑Again, it depends on the aircraft type, because, I mean, we get domestic aircraft that operators aren't signed off to switch. Now, in that case, you know, I'll give you an example of a Virgin ATR aircraft, so not all operators are authorised to switch that so then consequently either the pilot or the engineer must switch it, okay. And, again, the same thing with Airnorth, they operate the Embraer 170.

PN142

Yes?‑‑‑Now, not all operators have received sign off approval to sign the Embraer 170, so in that case the pilot or the engineer responsible for the aircraft must switch that aircraft. So they are domestic aircraft.

PN143

Yes, I appreciate that. Are you able to comment on jet domestic aircraft?‑‑‑They are jet domestic aircraft.

PN144

Not turbo - not propelled?‑‑‑They're not turbo props. They are jet aircrafts, okay.

PN145

The Embraers?‑‑‑So ATR is a turbo prop and an Embraer 170 is a jet aircraft.

PN146

Are you able to comment on - sorry, let me rephrase that, Mr Slattery said that the Boing 747, the 777s and the A380s are - and I think in your evidence you were saying that those are aircraft operated by Emirates and Etihad and Cathay Pacific and the engineers or pilots from those airlines perform this task of closing the fuel?‑‑‑Yes, Boing 777s are also operated by Virgin also though.

PN147

Yes. And it's true, isn't it, that those are the big aircraft which are traditionally used for international long-haul operations?‑‑‑They are wide-bodied aircraft.

PN148

Yes?‑‑‑But, again, we see wide-bodied aircraft operate domestic legs, so Jetstar, for instance, they'll operate 787s on a domestic leg to Sydney.

PN149

Yes, I'm not talking about the 787. I'm talking about the 747s and 777s and the A380s?‑‑‑Yes.

*** DAVID EVAN JAMES XXN MS GASPAR

PN150

Do you have a sense of what proportion of refuelling activities at Melbourne Airport comprise refuelling those aircraft?‑‑‑What portion?

PN151

What proportion of refuelling activities?‑‑‑In terms of literage or hook-ups?

PN152

Mr Slattery's evidence is that that's limited to about 10 to 15 per cent of ZIP Airport Services refuelling activities at Melbourne Airport. So I appreciate that the literage is obviously greater, because they've got further to fly?‑‑‑Yes, exactly.

PN153

Yes?‑‑‑Yes, I mean, it probably forms the bulk of the literage.

PN154

Yes. Yes?‑‑‑But in terms of hook-ups, I mean, obviously the hook-ups are less because they take more fuel, so it stands to reason that a domestic - there would be more domestic hook-ups than international hook-ups absolutely.

PN155

Far more, yes. So Mr Slattery's evidence, just to be clear, and you're not in a position to take issue with this, I suppose ‑ ‑ ‑?‑‑‑Mm-hm.

PN156

‑ ‑ ‑that it actually represents a relatively small proportion, 10 to 15 per cent, of refuelling activities performed by refuellers who are employed by ZIP Airport Services; that's so, isn't it?‑‑‑Ten per cent is probably a bit low. Maybe 15 to 20.

PN157

Fifteen, okay?‑‑‑Yes. Yes.

PN158

So let me put this to you then, the vast majority of your refuelling activities relate to domestic services and predominantly Qantas and Virgin services?‑‑‑Yes. Yes, predominantly - well, we also have Tiger.

PN159

Yes?‑‑‑Tiger as well, and Regional Express, so, you know, we refuel all of those aircraft. We don't have 100 per cent contract of Qantas, but - which is a split contract, but, yes, so generally in terms of switching we do switch those aircraft, but in the case where there's an MRO and a ‑ ‑ ‑

PN160

What's an MRO, sorry?‑‑‑Sorry, a maintenance release order on a refuelling panel. So if there's an MRO on a refuelling panel an engineer is still required to attend that aircraft and switch that aircraft and we see those quite regularly.

*** DAVID EVAN JAMES XXN MS GASPAR

PN161

Let me ask you then, and you were asked this by Mr Cooney, about the second paragraph 10 of your statement, relating to visitor passes and Melbourne ASICs and the like?‑‑‑Mm-hm.

PN162

Mr Slattery's evidence before this Commission was that a Melbourne ASIC is in fact required and that the passes, the visitor passes that you talk about are just for accompanied visitors?‑‑‑Yes, so ‑ ‑ ‑

PN163

And that an ASIC would be required to perform refuelling activities at the airport?‑‑‑Yes, so we've recently had, and in the past we've had refuellers from other ports that attend our site for the purposes of training. Now, those operators have had site specific ASICs, whether it be Sydney or Adelaide. They can operate at Melbourne Airport under a visitor pass, but they are accompanied by a person with an ASIC. Now, that person doesn't - not necessarily need to be a refueller, but as long as they have an ASIC. So it can be a member of office staff for instance.

PN164

Sure. Mr Slattery has also given evidence today that most people, as far as he is aware, who are able to be relocated from other airports to help out at Melbourne Airport if the need be actually don't have that Australian wide ASIC that you've described, and that they do tend to have site based ASICs?‑‑‑No, well, that's ‑ ‑ ‑

PN165

You're not in a position to contradict his evidence on that, are you?‑‑‑So if he's saying that operators come to other ports and help out with refuelling then those operators, in my experience, would have an Australian ASIC, because if they don't they need to be escorted anyway, so ‑ ‑ ‑

PN166

Let me ask you this, do ‑ ‑ ‑?‑‑‑‑ ‑ ‑if they're coming to a port to assist then generally they would have an Australian ASIC, not a port specific ASIC.

PN167

Yes, but if refuellers are employed to work at a particular port, Sydney Airport, Mr Slattery's evidence is that they'd have a Sydney Airport ASIC, not an Australian wide ‑ ‑ ‑?‑‑‑No, that's not always the case. No, we have a reasonably even split amongst our refuellers, so some have Australian ASICs and some have Melbourne specific ASICs. Now, we've had a couple of guys recently who have just renewed their ASICs and previously they've had a Melbourne ASIC ‑ ‑ ‑

PN168

Yes?‑‑‑ ‑ ‑ ‑and they've been issued with an Australian ASIC in its place.

*** DAVID EVAN JAMES XXN MS GASPAR

PN169

What have you got?‑‑‑Mine is issued by the Civil Aviation Safety Authority which is an Australian ASIC because I'm a commercial helicopter pilot, so it's - so I can operate at any port.

PN170

I'd asked Mr Slattery about paragraph 11 of your statement as well, Mr James, and you were talking there about the availability of Melbourne Airport people to escort drivers airside?‑‑‑Yes.

PN171

And Mr Slattery's evidence was that Melbourne Airport wouldn't have the ability to do that on the scale that's required in order to refuel these aircraft and turn them around in time. Do you accept that evidence?‑‑‑No, I don't. That's incorrect.

PN172

So your evidence ‑ ‑ ‑?‑‑‑So in my experience I see these escort vehicles - now, we're a 24 hour operation at Melbourne.

PN173

Yes?‑‑‑We don't have a curfew like Sydney. Now, these escort vehicles operate 24 hours a day. Now, most of the works being conducted airside are done by outside contractors so, you know, whether that be extending fingerways or replacing concrete, and each of those contractors are required to be escorted.

PN174

Yes?‑‑‑And so the Melbourne escort vehicles operate 24 hours a day.

PN175

Yes. I accept that, Mr James, but the thrust of Mr Slattery's evidence is that because there is so much refuelling activity at the airport, so you perform 65 per cent of all refuelling activities at Melbourne Airport that equates to about 1300 to 2000 aircraft per week, they're short turnaround times so it's a busy airport his point in evidence was that there is just not enough scale at Melbourne Airport for the visitor trucks to drive around and escort people to the extent required to fulfil that need to fill the gap?‑‑‑No, I don't really accept that, because, as I stated before, that as a shift leader I'm responsible for approximately between 12 and 14 staff at any one time. Now, you know, given shift changes and what have you then generally there's - you know, you've probably got 12 trucks operating on a tarmac at any one time, so you're talking 12 escort vehicles.

PN176

How are you in a position to say whether Melbourne Airport can ‑ ‑ ‑?‑‑‑I'm not in a position to say whether Melbourne Airport can do that or not. What I'm saying is that at any one time we would have approximately 12 trucks airside in which ‑ ‑ ‑

PN177

Yes. But, just to be clear, Mr Slattery, whose job it is to interface with Melbourne Airport and the like and has informed himself on this matter, says that that's not likely to be helpful. Your evidence is that you don't agree with that?‑‑‑I don't agree with that.

*** DAVID EVAN JAMES XXN MS GASPAR

PN178

But you've conceded that ‑ ‑ ‑?‑‑‑No.

PN179

‑ ‑ ‑you actually don't know what Melbourne Airport could promote in that regard?‑‑‑Have Melbourne Airport provided a statement as to whether they can provide that coverage or ‑ ‑ ‑

PN180

That wasn't my question, Mr James?‑‑‑Okay. That's fine.

PN181

Thanks. Let me just check if I have anything else to ask you. Mr Cooney asked you about paragraph 12 of Mr Slattery's statement if you've still got that in front of you. And you had told us that you thought that there's currently only 54 people who can sign off. Just to be fair to you, to put this quite directly to you, Mr Slattery's evidence was, and he was asked again about this by the Deputy President, that his understanding was all 65 aircraft refuellers who are covered by your current enterprise agreement are qualified. All of them are qualified and can sign off on the activities outlined in the standard operating procedure?‑‑‑No, I disagree with that. So the 54 that are referred to - so we have - and that's one of my tasks as a senior aerodrome operator is responsible for keeping the refuellers up-to-date with their switching and so on, on aircraft, so that's their ability to switch the aircraft. That's the guidelines set out by the particular airlines. Now, in some cases it's - you know, majority of cases it's every two years. So the 54 are the ones that are currently signed off and within those timeframes to refuel aircraft. Now, we do have some casual staff that very rarely appear. They may be outside of their time limitation for their sign off on aircraft, but the 54 that are referred to are the ones that are currently signed off and switch trained to refuel aircraft. Okay. So they're - if there's a reference to 65 there may be 65 people actually employed by ZIP Airport Services, but currently there's only 54 signed off to refuel aircraft.

PN182

Thanks, Mr James. I don't have any further questions.

PN183

THE DEPUTY PRESIDENT: No, that's all right. I was just trying to clarify whether you were taking issue with whether there were 65 people covered by the agreement?‑‑‑That ‑ ‑ ‑

PN184

I mean, you don't know whether there might be some people on ‑ ‑ ‑?‑‑‑No, sir, I don't know. It's - what I do know is that there is only 54 currently approved to sign off and refuel aircraft.

PN185

Yes. And of those I think you said only 52 are covered by the agreement?‑‑‑That's correct, sir. Yes.

PN186

Sorry, Ms Gaspar.

*** DAVID EVAN JAMES XXN MS GASPAR

PN187

MS GASPAR: No further questions, Deputy President. Thank you.

PN188

THE DEPUTY PRESIDENT: Thank you. Any re-examination, Mr Cooney?

RE-EXAMINATION BY MR COONEY [3.21 PM]

PN189

MR COONEY: Yes, Deputy President. Mr James, you were asked about wide-bodied aircraft that would operate on long-haul routes. To your knowledge what wide-bodied aircraft operate domestic routes?‑‑‑So the main wide-bodied aircraft that would operate domestic routes is the airbus A330 which is operated by Virgin and Qantas.

PN190

Thank you. You referred to maintenance release orders and that they require an engineer?‑‑‑Yes.

PN191

Can you explain to the Commission circumstances in which a maintenance release order would be required?‑‑‑So a maintenance release order, if there's any issue with refuelling the aircraft, whether it be a centre tank is not available to be used or there was a defective fuel gauge or one of the fuelling shut-off valves may have an issue then an MRO would be issued for that aircraft. That's in the form of a sticker applied to the refuelling gauges with a date applied when that MRO was put in place.

PN192

All right. And what's the availability of an engineer to address those issues?‑‑‑Pretty good. We get straight on the radio and then within a couple of minutes an engineer is there to switch the aircraft.

PN193

And how often would that be the situation?‑‑‑We see it fairly regularly. You know, I couldn't give you an exact number but it's a fairly regular occurrence. I mean there's a lot of aircraft that operate. You know, not all the issues can be rectified straight away. In some cases it requires the aircraft to be grounded for a reasonable amount of time, and that's not something that the airlines are too willing to do if they can operate with an MRO applied, so in that case they'd get an engineer to switch it. So the engineers are located - for Virgin and Qantas they're located on the fingerways where they operate their aircraft, so it's pretty well straightaway for them to attend the aircraft.

PN194

And then you were asked about airport escort vehicles?‑‑‑Yes.

*** DAVID EVAN JAMES RXN MR COONEY

PN195

And you pointed out that Tullamarine is a 24/7 airport. Has there ever been any issues about the availability of an airport escort vehicle that you can recall?‑‑‑No, none that I know of.

PN196

Nothing further, Deputy President.

PN197

THE DEPUTY PRESIDENT: Yes. Thank you. And, Mr James, thank you for your evidence. You're excused?‑‑‑Thanks, Deputy President.

<THE WITNESS WITHDREW [3.24 PM]

PN198

THE DEPUTY PRESIDENT: Yes, Ms Gaspar.

PN199

MS GASPAR: Thank you, Deputy President. The employer relies on the written submissions that we filed on Friday, and I'll just take you through the key points from those, Deputy President.

PN200

THE DEPUTY PRESIDENT: Yes.

PN201

MS GASPAR: I'll just also hand up, Deputy President, for your reference and assistance, it's a folder of the cases that the employers refer to in the written submissions.

PN202

THE DEPUTY PRESIDENT: Thank you.

PN203

MS GASPAR: Deputy President, there's no question that you're empowered to require that a protected action ballot order specify a longer period for the union to notify the company of its intentions to take protected industrial action. The power available for you is to extend to up to seven working days. I indicated at the outset that the company seeks that a longer period in respect of all but one of the work bans that have been indicated by the union.

PN204

We accept, and this is set out in our written submission, that there's a two-stage test here, Deputy President, that you need to turn your mind to. The first requires satisfaction that exceptional circumstances do in fact exist. This is a concept which was developed by Lawler VP, as he then was, in the Australian Post case, which you'll find in your tab of materials behind tab 4. That case considered the relevant statutory position in relation to the predecessor legislation before the Fair Work Act but for all intents and purposes the relevant provision is the same, and that authority remains good.

*** DAVID EVAN JAMES RXN MR COONEY

PN205

Lawler VP recognised that to be exceptional the circumstances don't need - they do need to be out of the ordinary course. There does need to be something unusual or special, but it doesn't need to be unique, unprecedented or very rare.

PN206

There's only a handful of these cases that have been decided, so more than a handful, but at least in two of those have concerned the impact of operations at airports in this country. And two of those are behind your tab, Deputy President. So you'll find the AFAP and Alliance Airlines case behind tab 7 there. And another one which the company relies on is the TWU and ISS security case and that concerned industrial action by security guards at Adelaide.

PN207

We rely on those cases, Deputy President, because, in my submission, it is accepted that the impact on the passengers who utilise airline services in this country, and the flow-on effects to airlines and domestic and the international travellers as a result of industrial action that occurs to airports is those sort of circumstances that brings the company within the exceptional range.

PN208

So the company accepts that, yes, of course, industrial action hurts the employer. There's no question about that, but when you look at this action, and taken in combination with the flow-on effects to the company's ability to refuel aircraft at Melbourne Airport, and the flow-on effects, particularly having regard to the proportion of refuelling activities that the employer undertakes at Melbourne Airport, 65 per cent, and the vast majority of that relating to domestic airline activities, and the task that you've heard talked about in evidence today with respect to the work ban, so closing the fuel gauge - sorry, the fuel latch, whatever it's called, forgive me for mistaking that terminology, and the impact on overtime bans and work stoppages will have. And that evidence of Mr Slattery wasn't troubled in cross-examination, Deputy President.

PN209

So, in my submission, having regard to the sheer number of aircraft that are impacted, so it's between 1300 and 2000 aircraft per week, the flow-on implications for the scheduling of those aircraft, the availability of bays at Melbourne Airport, and the relatively short turnaround time for aircraft to be refuelled in order to make it to their next destination, the consequences there are immediate and they're substantial. So our submission is that those exceptional circumstances do exist.

PN210

The second limb of the test requires you, Deputy President, to satisfy yourself that those exceptional circumstances in fact justify a longer period of notice to be provided, and again, Lawler VP in CEPU v Australia Post case described this as a balancing exercise. When you look at the purpose of a union notifying protected industrial action having regards to the Davids Distribution case, a well-established authority there, that the whole purpose of notifying protected industrial action is to allow an employer to take some steps to mitigate the adverse effects of that protected industrial action.

PN211

So that's on the one hand. On the other hand it's balancing obviously what is an entitlement of unions to take protected industrial action and flex their industrial muscle and exert some pressure on the employer, so that balancing exercise is one that you need to grapple with today, and in the employer's submission ‑ ‑ ‑

PN212

THE DEPUTY PRESIDENT: Ms Gaspar, what is it that your client can do in seven days that it can't do in three?

PN213

MS GASPAR: So that's addressed by Mr Slattery's evidence, which again wasn't troubled in cross-examination. So mostly, Deputy President, relates to the substitution of labour. Bringing people in from either other airports or in some respect in relation to supervisors, but the main barrier here and what the extra few days' notice will allow the employer to do, is to get them trained up. So it's to first bring them down from elsewhere and so that requires re-scheduling in relation to other ports and re-rostering. It requires them getting them physically down to Melbourne, but it doesn't stop there, and this is why we rely on the cases that, particularly ISS and TWU, which relate to Adelaide Airport. So there a seven day period of notice was justified, and the basis of that was that this is an area which is subject to regulation. It's subject to regulation from Melbourne Airport. It's subject to regulation from a safety perspective. And so, again, none of this was the subject of cross-examination and so Mr Slattery's evidence in this regard should be accepted by the Commission.

PN214

As to the various refuelling qualifications Melbourne Airport driving licence, so this is in paragraph 20 of Mr Slattery's statement, which you've marked exhibit 1, Deputy President. This outlines the qualifications that are required there, and the approvals that are required there. And you can see quite specifically that ‑ ‑ ‑

PN215

THE DEPUTY PRESIDENT: Which source of labour is your client going to tap into?

PN216

MS GASPAR: So there's two main - sorry, three main sources. Mr Slattery says that there are some supervisors who are at Melbourne Airport who do currently have the capability, but his evidence, and this is outlined in paragraph 28 of his statement, is that there's only a couple of people who have got the capability to do that, so that's immediate one. They also say that they can ‑ ‑ ‑

PN217

THE DEPUTY PRESIDENT: It's happy that those people - presumably no additional training is required.

PN218

MS GASPAR: Correct.

PN219

THE DEPUTY PRESIDENT: Yes.

PN220

MS GASPAR: But the point here is that there's only two or three of those people.

PN221

THE DEPUTY PRESIDENT: Yes.

PN222

MS GASPAR: So that only gets us so far. Then there's bringing in Caltex staff or staff being ZIP Airport Services staff from elsewhere around the country.

PN223

Now, again, this doesn't completely solve the problem because there's a gap elsewhere there, but nevertheless it allows a bit of a finger in the dam so to speak, and to bring people down now, Mr Slattery describes in his evidence what is required in order to do that. So both in terms of logistically sourcing those people, but also ensuring that they've got the appropriate Melbourne Airport related qualifications in order to perform that work.

PN224

THE DEPUTY PRESIDENT: By logistically sorting those people, does that mean identifying those who are able to be released from other airports?

PN225

MS GASPAR: That's so. That's so, and also in terms of ‑ ‑ ‑

PN226

THE DEPUTY PRESIDENT: Presumably that can be done now with the view to establishing in anticipation of there being a successful ballot that over a period of the next two or three months whether some or all of these people might be available.

PN227

MS GASPAR: Not in my submission, Deputy President. There'll be precise action that will depend on when it is, how it's taken, and how people can be removed and brought down from elsewhere to deal with that. And, again, the company relies on similar cases where the security clearance is quite specific to the airline and the airport aviation industries are required in this regard. It does require, and Mr James's own evidence demonstrates that ‑ ‑ ‑

PN228

THE DEPUTY PRESIDENT: Putting availability to one side ‑ ‑ ‑

PN229

MS GASPAR: Yes.

PN230

THE DEPUTY PRESIDENT: ‑ ‑ ‑presumably some steps could be taken now to ensure that staff who are employed under the Viva umbrella elsewhere could obtain certain pre-approval requirements by way of accreditation or whatever else is necessary to work at Melbourne Airport. That could happen now.

PN231

MS GASPAR: Yes, with the caveat that I'm obviously not in a position to give that evidence from the Bar table.

PN232

THE DEPUTY PRESIDENT: No, I understand.

PN233

MS GASPAR: But what I can indicate is that Mr Slattery's evidence here describes, particularly if you look at, again, paragraph 30, Deputy President, of his witness statement, he quite methodically describes the steps that the company would need to take in order to deal with any notified protected industrial action and how long, in his estimation, it would take to do that.

PN234

I'm conscious that you asked me, well, why can't steps be taken now. The reality is that there's no point re-rostering people and bringing people down to Melbourne in standby now when it's unknown what precise industrial action will be taken.

PN235

THE DEPUTY PRESIDENT: No, I accept that. But to the extent that there are preconditions to a person working airside at Melbourne Airport ‑ ‑ ‑

PN236

MS GASPAR: Yes

PN237

THE DEPUTY PRESIDENT: ‑ ‑ ‑which require third party approval, steps to get that third party approval could be taken on a uniform basis for a large number of your existing employees now.

PN238

MS GASPAR: I accept that that might well be the case, yes, but I would also draw to your attention, Deputy President, that that's just one aspect of ‑ ‑ ‑

PN239

THE DEPUTY PRESIDENT: I accept that. Yes, I understand.

PN240

MS GASPAR: ‑ ‑ ‑the labour sources.

PN241

THE DEPUTY PRESIDENT: Yes.

PN242

MS GASPAR: So you can see here that this is paragraph 28 of Mr Slattery's statement, he talks about the availability of getting FIFO staff from Caltex, a truly independent third party here, and you might recall, Deputy President, that when Mr Slattery came into the witness box he deleted a paragraph from paragraph 20 of his witness statement, the effect of which - and when I asked him why he did that, he said, "Well, I've made inquiries of other providers and they're not in a position to assist us". So there's also the capacity issue here, Deputy President, which we invite you to keep at the forefront of your mind here. This is 65 per cent of aircraft refuelling activities. It is the majority of activities that occur at the airport, and it's not just a combination of that bulk of work that needs to be provided, but it's that in conjunction with the security requirements, the training requirements, and the like, which the company says justifies an extension of the notice period in the manner described by Mr Slattery in his evidence, which, as I said, was not the subject of any robust cross-examination.

PN243

THE DEPUTY PRESIDENT: Yes.

PN244

MS GASPAR: So, Deputy President, it's on that basis that the company says that the seven days' notice is justified. Exceptional circumstances do exist and Mr Slattery's evidence supports that those exceptional circumstances do justify a longer period. Just to be clear, this is a balancing exercise. This will not deprive the union of course of its ability to take protected industrial action, and it seems inevitable that there would be disruption to the airport, but this simply will - having regard to that balancing exercise between protecting the flying public and innocent, so to speak, third party airlines, from the effects of this industrial action, and it allows the employer to take some defensive steps as outlined is the purpose in that Davids Distribution case to protect the public and its third parties from the impact of this harm.

PN245

Those are our submissions, Deputy President. Unless I can assist you any further, that's the case for the employer

PN246

THE DEPUTY PRESIDENT: Yes. Thank you, Ms Gaspar.

PN247

MS GASPAR: Thank you.

PN248

THE DEPUTY PRESIDENT: Mr Cooney?

PN249

MR COONEY: Thank you, Deputy President. Deputy President, obviously we say that exceptional circumstances don't exist. To the extent that exceptional circumstances would encompass safety to the flying public in the sense of a third party, such as we've seen, TWU and Linfox, where retailers would have money left on their premises, we say that there's not an issue here of planes, if you will, tumbling out of the sky.

PN250

We accept that the employer is allowed to take steps to mitigate the consequences of an industrial action, and what we'd say is that the evidence of Mr James has outlined contingency measures which they can undertake, and those contingency measures can be undertaken within three days given that the employer will be on notice from and if the ballot is successful in terms of taking protected industrial action.

PN251

As Mr James has outlined there's provisions for visitors to be admitted to the airport straightway. There's a process which already exists of escorts for contractors that come airside, and so the ability for ‑ ‑ ‑

PN252

THE DEPUTY PRESIDENT: But it's not in dispute that a contractor who comes airside only on a visitor's pass will - they're required to be escorted, is it?

PN253

MR COONEY: No. And we say that that would enable the employer in this instance to source ‑ ‑ ‑

PN254

THE DEPUTY PRESIDENT: An escort.

PN255

MR COONEY: Well, to source their ‑ ‑ ‑

PN256

THE DEPUTY PRESIDENT: A contractor and an escort.

PN257

MR COONEY: Yes, from - well, if they were to bring employees from interstate ‑ ‑ ‑

PN258

THE DEPUTY PRESIDENT: Yes

PN259

MR COONEY: ‑ ‑ ‑the requirement to get an ASIC immediately would be lessened by the fact that an escort could be provided to that ‑ ‑ ‑

PN260

THE DEPUTY PRESIDENT: So if, for example, 58 air refuellers decided to - well, the union gave notice of an indefinite stoppage commencing three days' hence, the employer would be required to find, or in order to mitigate, would be required to source labour, bring them across, train them, even if they could get on on a visitor's pass they would be required to be escorted?

PN261

MR COONEY: We'd say it's 52 employees. And they wouldn't all be operating at the same time, and ‑ ‑ ‑

PN262

THE DEPUTY PRESIDENT: The other two don't want an agreement?

PN263

MR COONEY: I think they're covered by another agreement, and they might be covered by another union, so ‑ ‑ ‑

PN264

THE DEPUTY PRESIDENT: Are they? I see.

PN265

MR COONEY: But what we'd also say is that the consequences of industrial action doesn't mean that there's not going to be some pain involved.

PN266

THE DEPUTY PRESIDENT: I accept that. I accept that.

PN267

MR COONEY: And what we're really talking about here is the ability of the employer to mitigate it, and the position as outlined from Mr James ‑ ‑ ‑

PN268

THE DEPUTY PRESIDENT: The real issue is assuming for a moment there are exceptional circumstances, whether those exceptional circumstances justify the additional action, so the mitigation, if you accept that it's relevant, is relevant for the purposes of mitigating the effect of the exceptional circumstances, otherwise exceptional circumstances wouldn't justify the grant - simply giving this employer the leave for the purposes of mitigating the effect on itself wouldn't be sufficient.

PN269

So really the issue, as I understand it, the issue that ZIP points to as exceptional circumstances relate not to the impact on ZIP, but to the impact on the travelling public, and the seven days' notice for which it contends is directed to mitigating the impact on the travelling public, not on it, and that's the only way it could succeed.

PN270

MR COONEY: Yes, Deputy President. We would concede that there would be some impact on the travelling public by the very nature of the industrial action, but that there would be an ability to lessen that impact upon them because planes would still be flying. They may not be - departure times, for instance, may be somewhat out of kilter, but it's not to the extent that that of itself would be justify exceptional circumstances. The nature of industrial action is that third parties are often impacted and it's the ability to which those third parties can seek other options or can otherwise make arrangements. So we would accept that there would be impact on third parties, but we don't say that there's ‑ ‑ ‑

PN271

THE DEPUTY PRESIDENT: The point that Ms Gaspar makes about that is that a seven day period of notice would give the travelling public a longer period within which to make alternative arrangements.

PN272

MR COONEY: Deputy President ‑ ‑ ‑

PN273

THE DEPUTY PRESIDENT: I'm just putting her point ‑ ‑ ‑

PN274

MR COONEY: Yes. Whether it's three days or five days or seven days, once it's known that industrial action will be occurring the travelling public would be in a position where they start to make alternative plans, whether that could be video-conferencing or whatever. But if it's still to be - if it was to be seven days' notice that they're put on, there's still going to be inconvenience, whether it's three or seven days, and we don't shy away from that.

PN275

Yes, maybe the impact will be greater, if the industrial action is on the three days' notice than seven days', but it's not to the extent that it would otherwise justify exceptional circumstances. There's still going to be an impact regardless which is the purpose of the industrial action to put pressure on the employer for bargaining purposes.

PN276

There's nothing further, Deputy President.

PN277

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Cooney. Ms Gaspar, anything in reply? Perhaps while you're getting up and thinking about that, why is it necessary that each time the union wants to encourage its members to implement, for example, work ban 2(a) that you need seven days' notice? As in not to give the union lessons about strategic advantage in implementing work bans, but one view might be that they give you notice that for the next nine weeks they will engage in work ban 2(a) but only do it for every third aircraft randomly.

PN278

MS GASPAR: Yes, that's so. So there's various ways that the proposed forms of protected ‑ ‑ ‑

PN279

THE DEPUTY PRESIDENT: And that would have the same effect as not giving any notice at all.

PN280

MS GASPAR: Yes. I think I know what you're getting at, Deputy President, and perhaps if I can put it another way by reference to a different proposed form of protected industrial action, so one of the proposed stoppages from the union as an unlimited number of stoppages for the performance of work for specified periods of between one and 72 hours.

PN281

THE DEPUTY PRESIDENT: Yes.

PN282

MS GASPAR: And so that's the sort of ban that, if it's just one hour, the flow-on implications might be relatively contained given the evidence that we've got that turnaround times of aircraft bays is 30 minutes, and so it will have flow on implications for the network but the difficulty for the employer is that it doesn't know whether it's going to be one hour or 72 hours, and so Mr Slattery's evidence describes what the implications of the labour, you know, surplus and substitution is going to be if it's one hour, and he also describes if it's 24 hours. But this is precisely why the employer needs a seven day period of time, because it doesn't know that.

PN283

THE DEPUTY PRESIDENT: Yes, but if I take that as an example, the union might for example give you notice that over the next nine weeks it is going to engage in one hour stoppages and two hour stoppages ‑ ‑ ‑

PN284

MS GASPAR: Yes, that's ‑ ‑ ‑

PN285

THE DEPUTY PRESIDENT: ‑ ‑ ‑and three hours and so forth and that will begin on Monday, X date.

PN286

MS GASPAR: Yes. Yes.

PN287

THE DEPUTY PRESIDENT: And if you were in the same position, because you don't know when they'll start, you just know their duration, and you'll know that the first one will start at a particular time on the first day.

PN288

MS GASPAR: Are you saying, Deputy President, if they give a formal 414 notice?

PN289

THE DEPUTY PRESIDENT: Yes. Yes.

PN290

MS GASPAR: That requires the sort of specificity that ‑ ‑ ‑

PN291

THE DEPUTY PRESIDENT: Sure.

PN292

MS GASPAR: ‑ ‑ ‑the employer can take defensive steps and, again, the purpose of this, which is the Davids Distribution case law authority which is still good law, is that the whole purpose of that is so that an employer can precisely understand the industrial action and take steps. We're here at the PABO stage of it where we don't know what that is. And the various forms of protected industrial action that this Commission is being asked to authorise in this ballot, we don't know that, and that is precisely why.

PN293

It would be a different situation if the union had come along and said, "As a standalone line item, do you authorise the taking of a one hour stoppage?" I suspect I would come here and have the same approach that I've taken or the company has taken in relation to the removal of the fuel aircraft. It is a case-by-case analysis as to what steps the employer can take to mitigate the risk and, as you correctly point out, Deputy President, it's actually not about ZIP Airport Services here. It is that in conjunction with the flow-on implications for the airlines and the flying public, and the evidence is that it does take some time in order to get re-fuel people. I didn't understand any of Mr James's evidence to be the effect that, "Oh, well, you can just get Qantas to do this from now on. In fact, that's in contradiction with Mr Slattery's evidence, who says that the airlines don't do this any more. They might've done it some time ago, but ‑ ‑ ‑

PN294

THE DEPUTY PRESIDENT: I understand. It's part of the contractual arrangements between your client and Qantas that it provide the service.

PN295

MS GASPAR: That's so. That's so.

PN296

THE DEPUTY PRESIDENT: I can't imagine that Qantas will be too keen to relieve you of that obligation.

PN297

MS GASPAR: That's so. And these are the sort of matters that are addressed in Mr Slattery's supplementary statement where it goes further and says, well, it's not just as simple as getting the airlines to do it. It's not just as simple as getting BP or Mobil to fill up that gap who do the remaining 35 per cent here. There's a volume issue, and there's a people issue in terms of sheer bodies on the ground, and there's licensing and regulatory issues here, and so we say all those things in combination, when you look at Mr Slattery's evidence, do justify the granting of a longer period of notice to deal with those exceptional circumstances that we say exist. Nothing further, Deputy President.

PN298

THE DEPUTY PRESIDENT: Thank you, Ms Gaspar.

PN299

MS GASPAR: Thank you.

PN300

THE DEPUTY PRESIDENT: What I propose to do is to reserve my decision. I will endeavour to - I have some difficulty in that I'm travelling for the rest of this week, but I'll endeavour to at least announce my decision by the making of an order, which in all other respects, is not contested, and either that will contain a notice period or it will not, and I'll publish my reasons for my decision at a later date.

PN301

I'm assuming, Mr Cooney, the union is still keen to get its order as soon as practicable?

PN302

MR COONEY: Yes, Deputy President.

PN303

THE DEPUTY PRESIDENT: I'll endeavour to publish an order tomorrow, but if not tomorrow, certainly the following day. As I said, reasons for decision will follow at a later date. Thank you both for your helpful submissions. We're adjourned.

ADJOURNED INDEFINITELY [3.53 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

SIMON MATTHEW SLATTERY, AFFIRMED................................................ PN29

EXAMINATION-IN-CHIEF BY MS GASPAR.................................................. PN29

EXHIBIT #1 WITNESS STATEMENT OF SIMON SLATTERY DATED 11/06/2019 PLUS ANNEXURE............................................................................................................ PN40

EXHIBIT #2 SUPPLEMENTARY WITNESS STATEMENT OF SIMON SLATTERY DATED 14/06/2019................................................................................................................. PN47

CROSS-EXAMINATION BY MR COONEY..................................................... PN69

THE WITNESS WITHDREW.............................................................................. PN84

DAVID EVAN JAMES, AFFIRMED.................................................................. PN88

EXAMINATION-IN-CHIEF BY MR COONEY................................................ PN88

EXHIBIT #3 WITNESS STATEMENT OF DAIVD JAMES DATED 14/06/2019 PN102

CROSS-EXAMINATION BY MS GASPAR..................................................... PN124

RE-EXAMINATION BY MR COONEY........................................................... PN188

THE WITNESS WITHDREW............................................................................ PN197